ITC Proposes New Discovery Rules

It’s time for the Law Blog Discover-E of the Week ®. The International Trade Commission is proposing new rules that would, ideally, make patent-infringement disputes more affordable by placing limitations on electronic discovery.

Before you nod off, a reminder: The mounting costs of high-stakes litigation are largely driven by discovery, in which parties exchange documents before trial that they deem relevant to the legal claims. So, any tweaks to that process are likely to seriously affect the costs and duration of a dispute before the ITC. The ITC is already known to be blazing fast (relative to the federal courts, at least), and the proposed rules could make it even faster.

The ITC’s proposal, which will be published in tomorrow’s Federal Register, closely tracks the Federal Rules of Civil Procedure. As it is, if, say, Apple makes a request of Samsung for information that it believes is relevant to an infringement claim, Samsung has to dig through all its emails and documents, no matter how much it costs or how long it takes, for that information.

Under the proposed rules, Samsung wouldn’t have to provide discovery from sources that it identified as “not reasonably accessible because of undue burden or cost.” Apple, however, could then file a motion to compel the production of the electronic documents in question, and Samsung would have to show that the information isn’t reasonably accessible. An administrative judge would ultimately decide the issue.

The judge could also limit discovery is she decides that a request is duplicative or can be obtained “from a less burdensome source.” The proposed rules would also create a set of procedures under which parties could make claims of attorney- client privilege.

The ITC’s proposed rules apply to 337 investigations. These are cases in which a patent holder files a complaint alleging that a competitor is importing infringing products into the U.S. ITC has the power to block infringing products from entry in the U.S.

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